Category Archives: Legal Observations

Health, life and capacity for work are the values on which the family and social well-being of each modern person is built. A person’s health is the capital, which every successful person is trying to maintain it at a high level throughout life. The foreign and domestic researches are showing that the risk of dying from medical malpractice, medical negligence or medical errors is the tens and hundreds of times higher than the one in car accidents, air crashes and etc.

To get any service, we are guided by the previously acquired experiences. So, when buying food products in the store, we check its appearance and features; when hiring a carpenter we tend to check a portfolio; going to a hairdresser, we can calculate precisely how we will look in 20-30 minutes; signing a mortgage, a loan agreement for the years ahead, we foresee the result.

However, when getting medical service, in most cases, we can guess and hope for the results in medical intervention, and the probabilities here could be numerous. By agreeing to have a complicated abdominal surgery, most people refer to the risk of medical errors with ‘understanding’; psychologically, some are even ready death, especially if a consent is signed, notifying them of the likelihood of death.

That is, people are mostly ‘humanly’ ready to forgive a physician incompetency, medical negligence or medical error.
In everyday life the risk may be justified only if the person possessing a full and objective information on the factors influencing the occurrence of adverse events to their health and takes his own conscious decision to act.

At the same time, perceiving the mandatory approval of the attending physician for the ultimate truth, we deliberately abandon many civil rights; for example – informed consent, holding a consultation in the presence of a medical lawyer and etc.

Medicine around the world – is primarily a huge-profit business. The experience of medical lawyers organisations and medical negligence solicitors, dealing with the protection of the rights of patients, shows that 50-70% of the official information contained in the medical records is at least partially false, and therefore does not reflect an objective picture of the health status of the patient.

Most probably you haven’t noticed that healthcare workers and doctors do not like the ‘witnesses’ in the course of the conversation or consultation with the patient or during medical procedures. Of course, it is explained by a good number of factors, but partially, it is a defensive position depriving you from certain evidence in the future (in the event something goes wrong). Most investigations into medical error ‘stumble’ on the facts of false information contained in the medical records and medical history, concealing medical errors. When having a closer look on the state of affairs, different facts become obvious. Thus, in an NPR article it is said the amount of lethal outcomes caused by medical errors and negligence in the US accounts for around 444,000 annually, not 44,000 – 78,000 according to the official statistics.

Historians still argue about the authorship of the ‘Errare humanum est’ (Humans tend to make mistakes) expression, which later became winged. Some believe that it was first uttered in the V century BC by Greek poet Euripides. Others argue that Cicero, who once said, ‘To err is human, but the one persisting in errors is a fool’; another popular remark mentions the doctors of antiquity, who used to say that medicine is the history of human errors.
Talking about human mistakes and errors is difficult, especially when it comes to health care services. Nevertheless, there is no sphere of activity, where the issue has been studied as thoroughly as in medicine. This is due to the fact that the consequences of the doctor’s mistake are especially serious and may lead to a disability or even death.

The reasons behind errors can be either objective or subjective. The first type is mostly associated with diversity of views in the treatment of certain diseases. The therapeutic complex of measures, which was previously considered to be the most efficient, from the point of view of modern scientific approaches can be regarded to as incorrect. It also comprises errors made by doctors in their interaction with patients by virtue of non-compliance with basic deontological principles. Any doctor is not free from professional mistakes, just like any representative of any specialty. However, due to the peculiarities of their profession, their work acquires an increased social significance. A pilot error, resulting in the death of hundreds of people at the same time, for some reason, is treated as a ‘human factor’. Maybe this is due to the peculiarities of the profession. (more…)

In judicial practice the number of cases when the clinic is also held liable for the acts of one of its employees is slowly, but gradually increasing. The situation becomes more complicated if a medical error occurred after, for example, the physician sent a patient for further treatment to other specialists. If the damage is caused by employee of the clinic, the patient can use several options to protect their violated rights: to file a claim against a particular individual (a physician), by the virtue of efforts of which, in his opinion, the damage was made; against the clinic or against both, attracting clinic as a respondent. In practice, a better part of claims is brought against the health institutions (clinics). Importantly, an institution’s (clinic) responsibilities include: providing medical care for patients and being liable for the negligence of its employees.

The issue of liability of clinic currently remains a controversial and debated question, not only in the legal literature, but also in judicial practice. The decision on this important issue also depends on the health system adopted in the state or region and the relations that govern patient-doctor relations by the law. This issue has repeatedly been considered at the highest level and in the jurisprudence of the Anglo-American legal system, where the approach to it is quite flexible.

In Australia, in Ellis case against Hospital in Wallsend District the Court has made a decision by a majority vote, that ‘the clinic is jointly and severally liable in cases where the patient can go directly to the hospital for treatment or consultation. This responsibility does not occur when the clinic simply provides that services used treatment approaches used in their institution’.

In another case, the Ontario Court of Appeal decided that ‘the duties are not limited to a simple hospital hiring of competent staff’. In establishing the fact whether there was the fact of negligence, the courts adheres to the same definitions that are used in the determination of any other civil lawsuits or criminal cases. Therefore, in the UK the narrow specialisation is on the rise – according to Solicitors.Guru, one of the largest legal databases in the UK where anyone can find a solicitor easily, the number of medical negligence solicitors has increased by 15% in comparison with 2014.